OPINION: PSNI and Department of Justice are wrong on powers of entry

The debate about PSNI powers of entry has been reignited following the Justice Minister and ACC Alan Todd presenting a new (however absurd) theory as to the exercise of such powers.

OPINION: PSNI and Department of Justice are wrong on powers of entry

By Jamie Bryson

At the outset it is important to set out that legitimate debates around concerns about the PSNI abusing their powers or misinterpreting the law should not act as an encouragement to anyone to breach public health guidance or otherwise act unreasonably. Opposition to the PSNI operating unlawfully and in breach of the fundamental rights of citizens, which if permitted to go unchallenged would create an extraordinarily dangerous precedent, is not opposition to the necessary public health message.

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The PSNI initially claimed they had a power of entry under the Police and Criminal Evidence Order 1989 (‘PACE’). This was never sustainable.

Article 19 confers unilateral powers of entry in very narrow circumstances. It is unnecessary to list each one of those as there is widespread agreement that the vast majority are not applicable.

The crucial issue is that Article 19 at (1) (b) only permits entry for an indictable offence. None of the Covid offences are indictable, therefore this is of no assistance to the PSNI.

One of the initial bizarre incarnations of the PSNI’s justifications suggested that they could enter under under Article 19 (1) (e), namely “saving life or limb, or preventing serious damage to property”. PSNI quickly reversed from this, presumably realising very quickly that arguing they could enter because Covid 19 poses a threat to life was so utterly ridiculous that no reasonable person would humiliate themselves even presenting it as a serious argument.

As per Article 19 (4), all other common law powers of entry are abolished, save for entering to prevent a breach of the peace as per Article 19 (5).

It is abundantly clear therefore that neither PACE nor common law provide powers of entry for the purposes of Covid offences. The Police Federation accepted this reality on 7 January 2021, only days after West Midlands police also accepted they had no powers of entry. In any event, the National Police Chiefs Council guidance and House of Commons briefing papers had been clear from the outset that there was no power of forced entry.

However, on Thursday night (7 Jan 21) Justice Minister Naomi Long- in response to a question on house parties, informed Mark Carruthers on The View that PSNI had powers of entry under the Coronavirus Act 2020.

We turn therefore to Schedule 18 of the Coronavirus Act 2020, titled “powers to act for the protection of public health: Northern Ireland”.

Helpfully, Section 25R (1) deals specifically and explicitly with powers of entry for the purpose of enforcing the regulations. You will note it is subject to subsections (2) to (4) (only operable in those terms). It states, inter alia:

“(1)An authorised officer has the right (subject to subsections (2) to (4)) to enter any premises at all reasonable hours for any or all of the following purposes—

(a)ascertaining whether there is, or has been, on, or in connection with, the premises any contravention of a provision of this Part, of regulations made under this Part, or of a Part 1A order;

We turn to subsection (4), which is as follows:

“(4)Subsection (1) does not authorise entry to any part of premises which is used as a private dwelling (but this does not affect the power of a magistrates’ court under subsection (5) to issue a warrant authorising entry to a private dwelling or to any part of premises used as a private dwelling).”

It is clear and obvious therefore that far from providing powers of entry into a private dwelling, it expressly prohibits such entry at subsection (4), save for in circumstances whereby a warrant has been obtained from a Magistrate.

After this was pointed out, on Monday morning a new incarnation of the argument presented itself. The Justice Minister stated that the Public Health Act provided that an “authorised officer had the power to take any action necessary to enforce the health regulations”.

Shortly after ACC Alan Todd of the PSNI adopted the same argument on the Stephen Nolan Show. This invention had only recently transpired, and had more than a little aroma of a Government lawyer contriving a knowingly tenuous argument on the basis that- ‘this is nonsense, we all know its nonsense, but it might just about be arguable, so fire on and hope no one challenges it‘.

Schedule 18 of the Coronavirus Act 2020 is to be read as if it were 1A of the Public Health Act 1967. It is a basic principle of interpretation that the general must give way to the specific. Therefore, it is beyond absurd that the Department of Justice and PSNI would actually purport to argue that despite Parliament expressly setting out the powers of entry- for the very purpose of Covid regulations- and expressly prohibiting entry into a private dwelling, that nevertheless the PSNI can override those constraints by recourse to a broad general power. It is, to be frank, arrant nonsense.

The absurdity was summed up by barrister and public law expert Francis Hoar BL who tweeted: “incredibly concerning that she (Justice Minister) is encouraging the NI police to break the law. I hope anyone affected sues them. And if I were her, I’d be worried about litigation too.”

This comes after Lord Sumption QC told Radio 5Live on 9 January 2021 that indeed there were no powers of entry into private dwellings to investigate Covid offences.

Later on Monday, the Justice Minister made clear that neither her, nor her Department, had issued any instructions to the PSNI or encouraged them in any way operationally. It appears therefore that it is ACC Todd who once again finds himself in the situation of having to continue to stand over a plainly preposterous argument.

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